ORDER: (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS;

(2) DENYING REQUEST FOR APPOINTMENT OF COUNSEL; and

(3) DENYING CERTIFICATE OF APPEALABILITY

LARRY ALAN BURNS, District Judge.

I. INTRODUCTION

Dorothy Maraglino ("Maraglino" or "Petitioner"), a state prisoner proceeding pro se, has filed an Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition" or "Pet."), challenging her San Diego Superior Court conviction in case number SCN304686 for first degree murder with special circumstance, conspiracy to commit kidnapping and kidnapping. (See Pet. at 1-2, ECF No. 3.) The Court has reviewed the Petition, the Answer and Memorandum of Points and Authorities in Support of the Answer, the lodgments, the Traverse and all the supporting documents submitted by both parties. For the reasons discussed below, the Court the Petition is DENIED.

II. FACTUAL BACKGROUND

The following statement of facts is taken from the California Court of Appeal opinion, People v. Maraglino, et al.,1 No. D69297, slip op. (Cal. Ct. App. Dec. 29, 2017). This Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1) (West 2006); see also Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from those facts, are entitled to statutory presumption of correctness). The appellate court summarized the facts as follows:

(Lodgment No. 14 at 3-21, ECF No. 16-49.)

III. PROCEDURAL BACKGROUND

On May 10, 2013, the San Diego District Attorney's Office filed an amended information charging Maraglino with murder (Cal. Penal Code § 187) (count one), with a kidnapping special circumstance (Cal. Penal Code § 190.2(a)(17)); conspiracy to commit kidnapping (Cal. Penal Code § 182(a)(1)) (count two); kidnapping (Cal. Penal Code § 207(a)) (count three); torture (Cal. Penal Code § 206) (count four); and attempted sexual battery by restraint (Cal. Penal Code §§ 664, 243.4(a)) (count five). (Lodgment No. 3, Clerk's Tr. vol. 1 at 12-19, ECF No. 16-34.)

Maraglino was tried by jury, along with her co-defendants Perez and Lopez. The jury was sworn on September 9, 2015. (Lodgment No. 3, vol. 6 at 1524, ECF No. 16-38.) Deliberations began on October 16 (id. at 1593) and verdicts were returned on October 21, 2015. (Id. at 1599.) The jury found Maraglino guilty on all five counts and found the special circumstance to be true.2 (Id. at 1598.) On November 19, 2015, the trial court sentenced Maraglino to life without the possibility of parole plus a term of life with the possibility of parole, plus eight years and six months.3 (Lodgment No. 3, vol. 5 at 1419-22, ECF No. 16-37; id., vol. 6 at 1601.)

Maraglino appealed her conviction to the California Court of Appeal. (See Lodgment No. 6, ECF No. 16-41.) On December 29, 2017, the appellate court affirmed Maraglino's convictions in part and reversed them in part. (See Lodgment No. 14, ECF No. 16-49.) The court reversed Maraglino's convictions for torture and attempted sexual battery by restraint, concluding that there was insufficient evidence to support them. (Id. at 113.) The appellate court affirmed her convictions for first degree felony murder with special circumstance, kidnapping and conspiracy to commit kidnapping. (Id.) The court ordered the abstract of judgment against Maraglino be amended to reflect a new sentence of eight years plus life without the possibility of parole. (See id.)

Maraglino filed a petition for review in the California Supreme Court, along with Perez and Lopez. (See Lodgment Nos. 15, 16, 17, ECF Nos. 16-50-16-52.) The petitions were consolidated and denied without comment or citation on April 11, 2018. (See Lodgment No. 18, ECF No. 16-53.)

On February 12, 2019, Maraglino, proceeding pro se, filed the instant Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in this Court. (See Pet., ECF No. 3.) Respondent filed an Answer and Memorandum in Support of Answer on July 22, 2019. (ECF No. 15.) Maraglino filed a Traverse on July 29, 2019. (ECF No. 17.)

IV. SCOPE OF REVIEW

Maraglino's Petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320 (1997). Under AEDPA, a habeas petition will not be granted unless the adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 8 (2002).

A federal court is not called upon to decide whether it agrees with the state court's determination; rather, the court applies an extraordinarily deferential review, inquiring only whether the state court's decision was objectively unreasonable. See Yarborough v. Gentry, 540 U.S. 1, 4 (2003); Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004). In order to grant relief under § 2254(d)(2), a federal court "must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record." See Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir. 2004).

A federal habeas court may grant relief under the "contrary to" clause if the state court applied a rule different from the governing law set forth in Supreme Court cases, or if it decided a case differently than the Supreme Court on a set of materially indistinguishable facts. See Bell v. Cone, 535 U.S. 685, 694 (2002). The court may grant relief under the "unreasonable application" clause if the state court correctly identified the governing legal principle from Supreme Court decisions but unreasonably applied those decisions to the facts of a particular case. Id. Additionally, the "unreasonable application" clause requires that the state court decision be more than incorrect or erroneous; to warrant habeas relief, the state court's application of clearly established federal law must be "objectively unreasonable." See Lockyer v. Andrade, 538 U.S. 63, 75 (2003). "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams v. Taylor, 529 U.S. 362, 411 (2000). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

Where there is no reasoned decision from the state's highest court, the Court "looks through" to the underlying appellate court decision and presumes it provides the basis for the higher court's denial of a claim or claims. See Ylst v. Nunnemaker, 501 U.S. 797, 805-06 (1991). If the dispositive state court order does not "furnish a basis for its reasoning," federal habeas courts must conduct an independent review of the record to determine whether the state court's decision is contrary to, or an unreasonable application of, clearly established Supreme Court law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) (overruled on other grounds by Andrade, 538 U.S. at 75-76); accord Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). However, a state court need not cite Supreme Court precedent when resolving a habeas corpus claim. See Early, 537 U.S. at 8. "[S]o long as neither the reasoning nor the result of the state-court decision contradicts [Supreme Court precedent,]" id., the state court decision will not be "contrary to" clearly established federal law. Id. Clearly established federal law, for purposes of § 2254(d), means "the governing principle or principles set forth by the Supreme Court at the time the state court renders its decision." Andrade, 538 U.S. at 72.

V. DISCUSSION

Maraglino lists two claims in her Petition. In ground one Maraglino contends she was denied due process when the California Supreme Court failed to overturn her "remaining" convictions based on insufficient evidence.4 (See Pet. at 6.) In ground two she claims she was denied due process because there was insufficient evidence to support the jury's true finding that she was a "major participant" in the underlying felony that led to the Killgore's death. (Id. at 7, 15-16.) She argues further in ground two that her sentence to life without the possibility of parole violates the Eight Amendment because the evidence was insufficient to support the special circumstance true finding. (See id.)

A. Ground One: Sufficiency of Evidence

In ground one Petitioner argues her due process rights were violated because there was insufficient evidence to support her "remaining three" convictions. (Pet. at 13.) While the bulk of her argument focuses on her conviction for conspiracy to commit kidnapping (count two), Maraglino also argues, as she did on direct appeal, there was insufficient evidence to support her convictions for kidnapping (count three) and first degree felony murder (count one). (See id. at 13-15, 18.) Although these subclaims are less artfully presented, this Court must construe pro se habeas filings liberally and as such, will address them in turn. See Maleng v. Cook, 490 U.S. 488, (1989); see also see Allen v. Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005).

1. Clearly Established Law

It is clearly established that due process clause is violated "if it is found that upon the evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 324 (1979); see also Cavazos v. Smith, 565 U.S. 1, 7 (2011) (per curiam); Juan H. v. Allen, 408 F.3d 1262, 1275 (9th Cir. 2005). This Court must review the state court record and view the evidence in the "light most favorable to the prosecution and all reasonable inferences that may be drawn from this evidence." Juan H., 408 F.3d at 1276 (citing Jackson, 443 U.S. at 319).

A petitioner faces a "heavy burden" when seeking habeas relief by challenging the sufficiency of evidence used to obtain a state conviction on federal due process grounds. Juan H., 408 F.3d at 1274. The federal habeas court must "apply the standards of Jackson with an additional layer of deference" under Section 2254(d)(1). Id.; see also Coleman v. Johnson, 566 U.S. 650, 651 (2012) ("We have made clear that Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference."). This doubly deferential standard limits the federal habeas court's inquiry to whether the state court's rejection of a sufficiency of the evidence challenge was an objectively unreasonable application of Jackson. Emery v. Clark, 643 F.3d 1210, 1214 (9th Cir. 2011); see also Coleman, 566 U.S. at 651.

In evaluating a sufficiency of the evidence claim on federal habeas, courts must look to the applicable state law defining the substantive elements of the crime. Chein v. Shumsky, 373 F.3d 978, 983 (9th Cir. 2004) (en banc) (stating the Jackson standard "must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law."); see also Juan H., 408 F.3d at 1278 n.14 (citation omitted) (stating that federal habeas courts "look to [state] law only to establish the elements of [the crime] and then turn[s] to the federal question of whether the [state court] was objectively unreasonable in concluding that sufficient evidence supported [the conviction])." In determining whether the evidence was sufficient, this Court must follow the California courts' interpretation of its own state law. See Bradshaw, 546 U.S. at 76; Emery, 643 F.3d at 1214. However, the "the minimum amount of evidence that the Due Process Clause requires to prove the offense is purely a matter of federal law." Coleman, 566 U.S. at 655.

The Jackson standard requires a reviewing court "respect the province of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts by assuming that the jury resolved all conflicts in a manner that supports the verdict." Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995). "[C]ircumstantial evidence can be used to prove any fact, including facts from which another fact is to be inferred, and is not to be distinguished from testimonial evidence insofar as the jury's fact-finding function is concerned." See United States v. Stauffer, 922 F.2d 508, 514 (9th Cir. 1990). Mere suspicion or speculation, however, cannot be the basis for creation of logical inferences. See Walters, 45 F.3d at 1358.

2. Conspiracy to Commit Kidnapping

Maralingo claims her conspiracy to commit kidnapping conviction was based on insufficient evidence, in violation of her due process rights. (Pet. at 6, 13-15.) Specifically, she contends she did not she did not conspire, or intend to conspire, with Perez to lure Killgore into accepting a date him under false pretenses in order to facilitate her abduction. (See id.) Respondent argues the state court's denial of the claim was neither contrary to, nor an unreasonable application of, clearly established law. (See Mem. P. & A. Supp. Answer at 14-23, ECF No. 15-1.)

a. State Court Opinion

Petitioner raised this claim in her petition for review to the California Supreme Court. (See Lodgment No. 16, ECF No. 16-51.) The court denied the petition without comment or citation. (Lodgment No. 18, ECF No. 16-53.) As such, this Court looks through to the last reasoned state court opinion, that of the California Court of Appeal. See Ylst, 501 U.S. at 805-06. The appellate court denied the claim, stating in relevant part:

(Lodgment No. 14 at 49-53.)

b. Discussion

The state court's conclusion that there was sufficient evidence to support Maraglino's conviction for conspiracy to commit kidnapping was neither contrary to, nor an unreasonable application of, clearly established law. As the appellate court stated, conspiracy requires "two or more persons agreeing to commit a crime, along with the commission of an overt act, by at least one of these parties, in furtherance of the conspiracy." People v. Dalton, 7 Cal. 5th 166, 244 (2019) (quoting People v. Homick, 55 Cal.4th 816, 870 (2012)); People v. Morante, 20 Cal.4th 403, 416 (1999); see also Cal. Penal Code § 182(a)(1).

Specifically, the jury was instructed on the elements of conspiracy to kidnap as follows:

(Lodgment No. 3, vol. 4 at 1175, ECF No. 16-36; see also CALCRIM No. 415.) The jury instruction went on to enumerate 42 alleged "overt acts," over a dozen of which specifically related acts purportedly done by Maraglino. (See Lodgment No. 3, vol. 4 at 1175-81.) Kidnapping is defined as unlawfully moving the victim "by use of physical force or fear, without the person's consent, and the movement was for a substantial distance." People v. Williams, 7 Cal. App. 5th 644, 670 (Cal. Ct. App. 2017); People v. Bell, 179 Cal.App.4th 428, 435 (Cal. Ct. App. 2009); see also Cal. Penal Code § 207(a).

Starting with the third conspiracy element, Petitioner does not dispute there was sufficient evidence she committed one of the 42 alleged "overt acts." Indeed, the evidence of such was overwhelming. For instance, three of the alleged overt acts related to a phone call Maraglino was alleged to have made to Killgore, during which she gave Killgore her "permission" to go on a Hornblower dinner cruise with Perez that evening.5 (See Lodgment No. 3, vol. 4 at 1177.) Cell phone records showed that Maraglino called Killgore's cell at 6:05 p.m. on April 13, 2012, shortly after Killgore had texted her at Perez's urging. (Lodgment No. 1, Rep.'s Tr. vol. 17 at 3156-57, ECF No. 16-17; vol. 18 at 3275-76, 3347, ECF No. 16-18.) The conversation was overheard by Killgore's friend, Channy Tal,6 who testified that Maraglino told Killgore she was unable to go on the dinner cruise because of her pregnancy and that she wanted Killgore to use the spare ticket and go with Perez. (Id., vol. 12 at 2068, 2072-73, 2119, 2123-24, ECF No. 16-12; vol. 18 at 3347.) This evidence alone is sufficient to satisfy the overt act element. See People v. Russo, 25 Cal.4th 1124, 1128 (2001) (holding a "jury need not agree on a specific overt act as long as it unanimously finds beyond a reasonable doubt that some conspirator committed an overt act in furtherance of the conspiracy").

While not disputing the evidence of overt acts, Maraglino argues there was insufficient evidence to establish that she and Perez had agreed or intended to agree to kidnap Killgore.7 Under California law, "[e]vidence is sufficient to prove a conspiracy to commit a crime `if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime.'" Dalton, 7 Cal. 5th at 244 (quoting People v. Maciel, 57 Cal.4th 482, 515-16 (2013)). A factfinder may infer the existence of a conspiracy from the "conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy." Maciel, 57 Cal. 4th at 515.

To prove an agreement, it is not necessary to establish the parties met and expressly agreed. Rather, "a criminal conspiracy may be shown by direct or circumstantial evidence that the parties positively or tacitly came to a mutual understanding to accomplish the act and unlawful design." People v. Johnson, 57 Cal.4th 250, 264 (2013) (quoting People v. Vu, 143 Cal.App.4th 1009, 1025 (Cal. Ct. App. 2006); see also People v. Thompson, 1 Cal. 5th 1043, 1111 (2016); Maciel, 57 Cal. 4th at 515-16; see also Homick, 55 Cal. 4th at 870 (stating that the element of agreeing to commit a crime "must often be proved circumstantially").

Here, Maraglino cannot overcome the double layer of deference this Court must give to the state appellate court's decision. See Coleman, 566 U.S. at 651. When viewed in its totality and in the light most favorable to the state, there was more than sufficient evidence of an agreement between Perez and Maraglino to kidnap Killgore as part of a bondage, discipline, sadomasochism (BDSM) fantasy. While the evidence against Maraglino was largely circumstantial, there was an abundance of it. With some 40 witnesses and nearly 400 exhibits introduced over the six week trial, the prosecution presented evidence in three general categories, (1) Maraglino's relationships, habits and proclivities prior to the murder, (2) her actions on the day of the murder and (3) her actions after Killgore was reported missing. All of this, when viewed together, amounted to sufficient evidence to support the jury's conclusion that Maraglino and Perez intended to, and did, agree to kidnap Killgore.

First, the prosecution presented evidence of Maraglino's and Perez's relationship and their history of participation in BDSM activities. "[T]he existence and nature of the relationship among the conspirators is undoubtedly relevant to whether such agreement was formed." Homick, 55 Cal. 4th at 871. As the appellate court noted, there was no dispute that Perez and Maraglino participated in BDSM activities, both together and with numerous other individuals over the years. (See Lodgment No. 1, vol. 8 at 1325-33, ECF No. 16-8; vol. 9 at 1437-38, ECF No. 16-9; vol. 11 at 1824, ECF No. 16-11.) Witnesses who had previously lived at Maraglino's house as part of a BDSM community testified that Perez and Maraglino were both sadists and the "dominants" of the household. (Id., vol. 8 at 1329, vol. 9 at 1461-62.) Dora B., who lived in Maraglino's home as part of a BDSM "family" from October 2010 to July 2011, testified that Maraglino was a sadist in all her BDSM relationships, with the exception of Perez, with whom she assumed a subservient, or "slave" role. (Id., vol. 8 at 1334-1335.)

Maraglino was known to be specifically interested in abduction and rape role-playing which included "kidnapping a girl off the street, taking her somewhere, playing with her, beating her, and raping her." (Id. at 1346-47; vol. 9 at 1415; vol. 11 at 1858, 1884.) Sometime in late 2010, Nicole A., a former member of the household, overheard Maraglino ask Dora B., another former housemate, what her reaction would be if a kidnapped woman was brought to the house.8 (Id., vol. 11 at 1858, 1884.) Writings recovered from Maraglino's house in her handwriting contained graphic depictions of such fantasies. (Id., vol. 16 at 3857-59, ECF No. 16-16; vol. 19 at 3341, ECF No. 16-19; vol. 21 at 3706-07, ECF No. 16-21.)

Evidence showed that Maraglino and Perez had previously acted out some of these fantasies with other members of the BDSM community. Nicole A. recounted an incident which took place in 2010. (See id., vol. 11 at 1822, 1870.) Nicole A. had been in a dominant/submissive relationship with Perez about a decade before and was interested in reestablishing a BDSM relationship with him and possibly Maraglino. (Id. at 1815-16, 1823-24.) Perez instructed Nicole A. to drive to Fallbrook, California and then call him for further instructions. (Id. at 1825-26.) She expected that she would get directions to Maraglino's house and the three would engage in BDSM "play." (Id. at 1826.) Instead, however, Perez directed Nicole A. to a parking lot of a shopping center and told her to wait for his call. (Id.) After several hours, Perez finally called. He told her to get in a truck that was parked next to her car and put on a blindfold. (Id. at 1828.) Nicole A. was surprised. When she got in the truck, Maraglino was in the driver's seat; Perez was not there. (Id. at 1829.) Nicole A. put on the blindfold. Maraglino did not speak or acknowledge her. (Id. at 1830.) Maraglino drove for a few minutes and when the truck stopped, a man she presumed to be Perez grabbed her arm, took her inside a house and led her down some stairs. (Id. at 1831-32.) Nicole A., who was still blindfolded, then felt Maraglino taking off her clothes. She heard Perez's voice, and the sound of him taking photographs. (Id. at 1834.) Maraglino put her in restraints and the three engaged in BDSM behavior. (Id. at 1835-37.) Nicole A. testified that she and Perez had not discussed (and she had not consented to) what they were going to do beforehand but she was ultimately "Okay with it" because she had known Perez previously. (Id. at 1835-36.)

While Nicole A. ultimately acquiesced to being taken to Maraglino's house under those circumstances, a reasonable juror could view this as evidence to show Maraglino and Perez had previously orchestrated scenarios which had at least some hallmarks of a BDSM abduction fantasy. As discussed above, the existence of a conspiracy can be inferred from past "conduct, relationship, interests, and activities" of the alleged co-conspirators. Dalton, 7 Cal. 5th at 244; Maciel, 57 Cal. 4th at 515-16.

In addition, multiple witnesses testified that Maragilno disliked Killgore intensely. (Lodgment No. 1, vol. 10 at 1611-12, ECF No. 16-10; vol. 13 at 2253-55; vol. 14 at 2380.) She referred to Killgore as a "disease" and "herpes." (Id., vol. 13 at 2256-57.) Maraglino was angry that Killgore had once fallen into Perez's lap while drunk at a gathering. (Id. at 2253-55.) She also complained about Killgore tagging along with her friend, Elizabeth Hernandez, whenever Hernandez visited. (Id. at 2254-55.) Maraglino made statements to Hernandez that she "could get rid of [Killgore] for [Hernandez] so [they] weren't together." (Id. at 2256.)

Viewed in isolation, the evidence of Maraglino's and Perez's BDSM activities, abduction fantasies and role-playing, and Maraglino's dislike of the victim would be insufficient to establish Maraglino's intent to conspire with Perez in Killgore's kidnapping. But when viewed within the context of the events of April 13, 2012 and the days that followed, a reasonable juror could conclude there was an agreement between the two, with specific intent to take Killgore against her will. See McDaniel v. Brown, 558 U.S. 120, 131 (2010) ("[A] reviewing court must consider all of the evidence admitted by the trial court" in the light most favorable to the verdict.)

On the afternoon of April 13, 2012, Hernandez, who was Killgore's best friend, dropped by Maraglino's house to return a camera charger.9 (Id., vol. 13 at 2267.) Perez was also there. (Id. at 2273-74.) While visiting with the two, Hernandez mentioned having gone on a Hornblower dinner cruise recently. (Id. at 2281.) Hernandez told Maraglino and Perez she was planning to take Killgore on a Hornblower cruise as a belated birthday celebration before Killgore moved back to Pennsylania. (Id. at 2282-83.) Maraglino asked when Killgore was moving. (Id. at 2277.) When Hernandez told her Killgore was leaving in four days, Maraglino got "excited." (Id. at 2277-78.) Maraglino joked that Hernandez would "finally be free." (Id. at 2278.)

At the time, neither Maraglino nor Perez mentioned having tickets for a dinner cruise that night. Yet just a few hours after Hernandez left Maraglino's home, Perez showed up unannounced at Killgore's apartment to invite her to join him on a Hornblower dinner cruise that evening.10 (Id., vol. 12 at 2057.) When Perez arrived, Killgore and her friend, Channy Tal, were packing up Killgore's belongings for her upcoming move. (Id. at 2051.) Tal stayed in the bedroom while Killgore chatted with Perez in the living room, but she overheard their conversation. (Id. at 2056.) Killgore was surprised to see Perez because she did not know him well. He did not have her phone number and had never been to her apartment before. (Id. at 2055.) When Killgore asked Perez how he knew where she lived, he told her he had "asked around." (Id. at 2058.)

Perez told Killgore he had two tickets for a Hornblower cruise that night but Maraglino was unable to go. (Id. at 2059.) He offered the spare ticket to Killgore. (Id. at 2060.) Killgore declined, telling him she was going to spend the evening with friends. Perez was persistent. (Id. at 2057, 2060.) Killgore also expressed concern that Maraglino would be upset if she went with Perez. After a few more unsuccessful attempts to convince Killgore to join him on the dinner cruise, Perez left. (Id. at 2060.) Before departing, Perez and Killgore exchanged phone numbers. (Id. at 2062.)

Perez admitted at trial that he never had tickets for a dinner cruise. (Id., vol. 21 at 3651, ECF No. 16-21; vol. 22 at 3848, ECF No. 16-22.) After he left Killgore's apartment, Perez texted Maraglino, "That guy wasn't successful." (Id., vol. 15 at 2642-43; vol. 18 at 3267.) A reasonable juror could infer from this that Maraglino was aware of Perez's attempts to convince Killgore to go on a cruise, despite not having tickets.

Surveillance video showed Perez leaving Killgore's apartment complex a 4:54 p.m. (Id., vol. 13 at 2212.) Killgore and Tal got back to packing and shortly thereafter, Tal noticed Killgore texting frequently. (Id., vol. 12 at 2064.) Cell phone records and recovered text messages showed that a few minutes after Perez left, Killgore texted him to ask if he knew anyone who could help her move. (Id., vol. 18 at 3266-67.) He responded via text that if she went out with him that evening, he would have "five guys there in the morning." (Id. at 3267.) She responded that, while moving help would be appreciated, she did not think Maraglino would approve of her going out with him. She told him she assumed Maraglino did not like her. (Id. at 3267-68.) Perez replied that it was not true and suggested Killgore text Maraglino and ask for her blessing to join him on the cruise. (Id. at 3269-70.) He followed up with another text about 20 minutes later, asking Killgore if she had contacted Maraglino yet. At 5:41 pm, Killgore responded that she would contact Maraglino shortly. (Id. at 3271-72.) Meanwhile, at 5:42 p.m. (before speaking to Killgore), Maraglino conducted an internet search for "San Diego dinner cruise." (Id., vol. 18 at 3341-42.)

Killgore called Maraglino at 5:55 p.m. and left a voicemail. (Id., vol. 12 at 2067; see also id., vol. 18 at 3274.) About ten minutes later, Maraglino called Killgore back. (Id., vol. 12 at 2068; vol. 17 at 3156-57; vol. 18 at 3275-76, 3347.) As discussed above, Tal overheard both sides of the conversation. (Id., vol. 12 at 2068.) Killgore asked Maraglino if it would be okay if she went on the dinner cruise with Perez. Tal heard Maraglino respond that it was fine. (Id. at 2068, 2073.) Maraglino lied and told Killgore that Perez had bought two tickets but she could not go because she was pregnant and was concerned about seasickness. (Id. at 2073.) She told Killgore she did not want the ticket to go to waste. (Id.) After the call ended, Maraglino conducted an internet search for "Hornblower dinner cruise." (Id., vol. 18 at 3341-44, 3359-60.)

At 6:10 p.m., Killgore texted Perez that she would go with him. (Id. at 3347.) Killgore also texted Hernandez that she was going out with Perez, which Hernandez thought was strange because the two rarely spoke. Perez texted Killgore that he would pick her up at her Fallbrook apartment at 7:30 p.m. (Id. at 3277-78.) The San Diego Hornblower dinner cruise departed at 7:00 p.m. that evening from San Diego Harbor. (Id., vol. 21 at 3651.)

A reasonable juror could view all of this evidence as showing that Perez and Maraglino planned the ruse in an attempt to get Killgore to leave her apartment with Perez voluntarily, in order to avoid detection. In addition, text messages reveal that when Perez arrived to pick up Killgore, he attempted to avoid entering the apartment complex parking lot, where there was video surveillance, claiming he was running late and did not want them to "miss [their] boat." (Id., vol. 18 at 3282.) He only did so after Killgore insisted he "drive into the complex" because it was raining. (Id. at 3281.)

At 7:37 p.m. Perez texted Killgore he had arrived; she is then seen on video surveillance entering his car. (Id., vol. 13 at 2216, vol. 18 at 3282.) At 7:39 p.m. Killgore texted a friend, apologizing for cancelling their plans that evening. At 7:40 p.m., Perez's car exited the apartment complex. (Id. at 2215-17.) Ten minutes later, at 7:50 p.m., Killgore texted her friend Tal, "Help." (Id., vol. 12 at 2081-83; vol. 18 at 3282.)

Shortly thereafter, at 7:57 p.m., Perez texted Maraglino, "Kitten?" (Id., vol. 18 at 3283.) At that time, Maraglino and Lopez were shopping at an Albertson's a few blocks from Maraglino's house.11 (Id., vol. 12 at 2133-15; 14 at 2257-64; vol. 18 at 3309.) At 8:11 p.m., Perez texted Maraglino, "Come home." (Id., vol. 18 at 3285.) They left the store at 8:12 p.m. (Id., vol. 14 at 2501-03, 2515-13, 2516-2520.) A neighbor of Maraglino's reported seeing Perez's white Ford Explorer pulling into Maraglino's lot "kind of fast" at about dusk that evening. (Id., vol. 13 at 2175-77, 2183.) When viewed in the light most favorable to the verdict, a reasonable juror could infer form all of this communication back and forth between Perez, Maraglino and Killgore, and Perez's attempts to avoid detection, that Perez and Maraglino were executing a plan to get Killgore to Maraglino's house against her will.

In addition, there was substantial evidence that Maraglino attempted to cover up the crime in the hours and days after Killgore went missing, which a reasonable juror could consider as circumstantial evidence of her guilt. The jury was instructed that it could consider such attempts to hide or fabricate evidence as "consciousness of guilt" to support the conspiracy conviction, but that such evidence alone was not sufficient.12

(Lodgment No. 3, vol. 1146; see also Lodgment No. 1 vol. 26 at 4281-82, ECF No. 16-26.)

Tal testified that she saw Killgore's 7:50 p.m. "help" text at 8:02 and immediately responded with texts and a call to Killgore's cell phone, asking if she was okay. (Id., vol. 12 at 2082-84, vol. 18 at 3242-45, 3283, 3306, 3308.) At 8:05 p.m., Tal received a response to her last text ("Are you okay"), saying: "Yes, I love this party." (Id., vol. 12 at 2085, 2092; vol. 18 at 3284.) Tal was suspicious because it was "not the way [Killgore] text[ed]." (Id., vol. 12 at 2085.) Tal asked Killgore to call her if she was "really okay" and received a text response, "In a few, hot guys." (Id. at 2093; vol. 18 at 3284.) Tal remained alarmed by the strange tone of the text and responded by demanding that Killgore call her immediately. (Id., vol. 12 at 2085-92; vol. 18 at 3283.) Two calls were placed from Killgore's cell phone to Tal at 8:09 p.m. and 8:10 p.m. The first was a hang-up and on the second, Tal heard only loud music. (Id., vol. 12 at 2093.)

Shortly thereafter, Tal alerted Hernandez about the situation and Hernandez also attempted to reach Killgore by calling her at 8:12 p.m., with no response. (Id., vol. 18 at 3285-86.) At this time, cell phone tower location data indicated Killgore's phone was "very close" to Maraglino's Fallbrook home. (Id. at 3306-07, 3311.) At 8:16 p.m., Hernandez texted Maraglino, "Hey, what's going on with [Perez] and Brittany." (Id. at 3285-3286.) When she received no response, Hernandez called Maraglino again at 8:21 p.m. This time Maraglino picked up. (Id., vol. 18 at 3286.) Hernandez told Maraglino she knew Killgore had made plans with Perez and wanted to know where Killgore was. Maraglino claimed she had no idea what Hernandez was talking about, that she had not spoken to Killgore, and insisted she would never have done so because she did not like her.13 (Id., vol. 13 at 2297-98, 2301; vol. 18 at 3286.)

Maraglino also lied to law enforcement. When she was interviewed by detectives on April 14, the morning after Killgore went missing, she admitted that Killgore had called her the day before but claimed Killgore never asked her about going out with Perez that evening. (Lodgment No. 3, vol. 5 at 1253.) Maraglino maintained that Killgore had only asked her if Perez could help her move. Maraglino told detectives she would never have given permission for Killgore to go out drinking with Perez. (Id.) This was in direct contradiction to what Tal overheard. (See Lodgment No. 1 vol. 12 at 2068, 2073.) It also contradicted what Maraglino told Hernandez—that she never spoke to Killgore at all on April 13. (See id., vol. 13 at 2297-98.)

After detectives found Lopez and her "suicide letters" at the Ramada Inn on April 17, law enforcement contacted Maraglino again. (Id., vol. 19 at 3504, 3513.) By that time, she had left San Diego for Virginia. (See Lodgment No. 3, vol. 5 at 1257.) Maraglino spoke to Detective Patterson on the phone and told him that on the evening of April 13, she and Lopez had watched a movie, "Adventures of Rin Tin" On Demand. (Id. at 1260; see also Lodgment No. 1, vol. 19 at 3512-16.) Maraglino's On Demand account showed that the movie was purchased at 9:08 p.m. on April 14, 2012. No movie was purchased on April 13. (Lodgment No. 1, vol. 19 at 3518.)

During the same April 17, 2012 phone interview, Maraglino told Detective Patterson that when she left for the store with Lopez at about 7:00 p.m. on April 13, Perez was getting dressed to go out. She did not see him again until about midnight. (Lodgment No. 3, vol. 5 at 1261.) When the detective told her Perez had reported stopping by the house with Killgore after picking her up, Maraglino became flustered. She said that maybe they tiptoed around her while she slept on the couch. She repeatedly responded to the detective's questions with "I don't recall" and "I did not see her." (Id. at 1265-67.) She became increasingly frustrated, insisting to Detective Patterson that he would not get her to contradict Perez. She then hung up on him. (Id. at 1266-67.)

By April 19, 2012, Maraglino had a new cell phone number. And the cell phone Maraglino had in her possession when she was arrested weeks later14 was not the phone she had used on April 13, 2012. (Lodgment No. 1, vol. 19 at 3533.) That phone was recovered nearly eighteen months later in Missouri, in a closet in the apartment of Maraglino's brother, under several suitcases, disassembled, and without a battery. (Id. at 3529-30, 3536; vol. 21 at 3710.) Forensic examination of the cell phone revealed that Maraglino had deleted much of the phone's content, including texts between herself and Killgore. (Id., vol. 17 at 3179-84.) Law enforcement was nonetheless able to retrieve the deleted messages from Verizon. (Id. at 3179-82.)

Based on the evidence of numerous and varied lies Maraglino told different people after Killgore went missing, a reasonable juror could infer that Maraglino had originally assumed no one knew she had spoken to Killgore on April 13 and given her blessing to go on the "date" with Perez. And when viewed in the light most favorable to the prosecution, Maraglino's repeated lying about it supports an inference that, from the beginning, Maraglino was part of the plan to dupe Killgore into accepting Perez's invitation.

As she did on direct appeal, Maraglino claims that her initial internet searches show she looked up generic "dinner cruises" as opposed to the specific "Hornblower" dinner cruise. (See Pet. at 14-15.) She contends that she did not know the Hornblower dinner cruise set off at 7:00 p.m. until after she spoke to Killgore and as such, she did not knowingly deceive Killgore to get her to go with Perez. (Id. at 15.) Maraglino's defense counsel made these same arguments at trial and given the verdict, it is clear the jury rejected them. (See Lodgment No. 1, vol. 27 at 4510-11, 4518-19.) The Jackson standard "leaves juries broad discretion in deciding what inferences to draw from the evidence presented at trial" and does not permit "fine-grained factual parsing." Coleman, 566 U.S. at 655. Maraglino's argument is based on the notion that innocent alternate explanations undercut the reasonableness of the jury's inferences; but whether an explanation was believed is solely a question for the jury. It is not for this Court to second-guess the jury's decision to credit or discredict a particular explanation where, as here, the jury's ultimate conclusion is based on reasonable inferences supported by the evidence as a whole. See Cavazos, 565 U.S. at 7 (holding that Jackson "unambiguously instructs that a reviewing court `faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'")

In sum, Maraglino has not overcome the "doubly deferential" standard of review under AEDPA and Jackson. When viewed in the light most favorable to the verdict, the evidence was sufficient to support Maraglino's conspiracy conviction. See Juan H., 408 F.3d at 1275; see also Jones v. Wood, 207 F.3d 557, 563 (9th Cir. 2000) (finding sufficient evidence for murder conviction where "evidence was almost entirely circumstantial and relatively weak"). Specifically, given the evidence of Maraglino's relationship with Perez, her interest in BDSM generally and abduction fantasies in particular, coupled with evidence of her actions before and after Maraglino got into Perez's car on April 13, 2012, a reasonable jury could infer Maraglino was guilty of conspiracy to commit kidnapping beyond a reasonable doubt. See Walters, 45 F.3d at 1358. The state court's denial of the claim was neither contrary to, nor an unreasonable application of, clearly established law. See Williams, 529 U.S. at 412-13; 28 U.S.C. §2254(d)(1). Moreover, the state court's adjudication did not involve an "unreasonable determination of the facts in light of the evidence presented in the state court proceedings," because Petitioner has not demonstrated that the state court factual findings are objectively unreasonable. See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); 28 U.S.C. § 2254(d)(2).

3. Kidnapping

Next, Maraglino contends her kidnapping conviction was based on insufficient evidence. (Pet. at 13.) She raised this claim in her petition for review to the California Supreme Court which was denied without comment or citation. (See Lodgment Nos. 16 & 18.) This Court therefore looks through to the last reasoned state court opinion, that of the California Court of Appeal. See Ylst, 501 U.S. at 805-06. The appellate court denied the claim, stating in part:

(Lodgment No. 14 at 44.)

The appellate court's denial of the claim was neither contrary to, nor an unreasonable application of, clearly established law. Under California law, kidnapping has three elements: (1) a person was unlawfully moved by the use of physical force or fear; (2) the movement of the person was for a substantial distance and (3) the movement was without the person's consent. People v. Bell, 179 Cal.App.4th 428, 435 (Cal. Ct. App. 2009); People v. Jones, 108 Cal.App.4th 455, 462 (Cal. Ct. App. 2003).

The second element — that the victim be moved a substantial distance — is commonly known as the "asportation" element. People v. Rayford, 9 Cal.4th 1, 14, 36 Cal.Rptr.2d 317 (1994). Kidnapping requires asportation of the victim be accomplished by force or instilling fear. People v. Majors, 33 Cal.4th 321, 326 (2004). This does not require physical compulsion. (Id. at 326-27.) Rather, where the victim reasonably feels compelled under the circumstances to comply with the defendant's orders under fear of harm or injury from the defendant, the asportation is forcible. Id. at 327. "In contrast, where the perpetrator tricks the victim into the asportation by fraud, deceit, enticement, or false promises, without application of the requisite force or fear, there is no kidnapping." People v. Alvarez, 246 Cal.App.4th 989, 1002 (Cal. Ct. App. 2016).

Here, there was no evidence Maraglino herself physically participated in abducting Killgore. Rather, it was the prosecution's theory that Perez perpetrated the kidnapping and Maraglino was guilty as an aider and abettor or co-conspirator (or both). (See id., vol. 26 at 4385-90, 4398, 4403-05, ECF No. 16-26.) California law extends liability as principals in a crime to "[a]ll persons concerned in the commission of a crime," and all those who "aid and abet in its commission." Cal. Penal Code § 31. A defendant who herself commits the offense is guilty as a direct perpetrator; if she assists another, she is guilty as an aider and abettor. See People v. Perez, 35 Cal.4th 1219, 1225 (2005). Moreover, each member of a conspiracy is criminally responsible for the acts of fellow conspirators, including the target offense and any other offense committed in furtherance of, and which follow as a natural and probable consequence of, the conspiracy. People v. Medina, 46 Cal.4th 913, 920 (2009); In re Hardy, 41 Cal.4th 977, 1025-1026 (2007). Thus, in order to find Maraglino guilty under either an aider and abettor theory or conspiracy theory, the jury had to first find Perez guilty as the direct perpetrator.

The evidence against Perez was overwhelming. When viewing the evidence in the light most favorable to the verdict, a reasonable juror could infer that Perez lied to Killgore about having tickets to the Hornblower cruise in order to get her to enter his car voluntarily. Perez's unsuccessful attempt to avoid driving into Killgore's apartment complex, where there were surveillance cameras, suggests he sought to avoid detection. While nothing on the surveillance footage shows Perez using "force or fear" to get Killgore to enter his vehicle, ten minutes after Perez's car exited Killgore's apartment complex, Killgore texted Tal, "Help." (Lodgment No. 1, vol. 12 at 2081-83; vol. 8 at 3282.) A reasonable juror could surmise that, at that stage, Killgore was no longer a willing passenger.

In addition, a stun baton, disposable gloves and handcuffs were recovered from Perez's vehicle. (Id., vol. 14 at 2574, 2578, 2580; vol. 15 at 2707, 2777.) Killgore's DNA was found on the prongs of the stun baton and Perez's DNA was on the handle. (Id. at 2932-33, 2935.) Postmortem evidence indicated the stun baton was used on the left side of Killgore's face (id., vol. 19 at 3472, 3475-76), suggesting Perez used force to restrain her while she was still a passenger in his car. Perez admitted at trial that after he picked Killgore up, he took her to Maraglino's house. (Id., vol. 22 at 3873.) A neighbor also reported seeing Perez's white Ford Explorer at dusk that evening, backing "kind of fast" into Maraglino's lot and disappearing behind the fence. (Id., vol. 13 at 2175-77, 2183.)

When viewed in the light most favorable to the verdict, a reasonable juror could conclude from this evidence that shortly after getting into Perez's car, Killgore realized she had been deceived. Her text for help, the stun baton, and the injuries to the left side of her face, support the conclusion that Perez moved Killgore a substantial distance (to Maraglino's house) by means of force or fear and without her consent. Thus, the state appellate court reasonably concluded that sufficient evidence supported Perez's conviction as the direct perpetrator of Killgore's kidnapping. (See Lodgment No. 6 at 41-44.)

Maraglino appears to argue that there was insufficient evidence to support her kidnapping conviction because there was insufficient evidence to support her conspiracy to kidnap conviction. As discussed above, the state court reasonably concluded that sufficient evidence supported the jury's conclusion that Maraglino conspired with Perez to commit the kidnapping. And as such, given the evidence that Perez was the direct perpetrator, Maraglino is by definition, guilty of kidnapping as his co-conspirator. See People v. Zacarias, 157 Cal.App.4th 652, 660 (Cal. Ct. App. 2007) (stating that a conspirator is guilty of acts committed by their co-conspirators, including the target offense, if it is committed).

Even assuming arguendo that there was insufficient evidence to support Maraglino's conspiracy conviction, there was nonetheless sufficient evidence to support her kidnapping conviction as an aider and abettor. For Maraglino to be guilty of kidnapping on an aiding and abetting theory, the prosecution had to prove: (1) Perez kidnapped Killgore; (2) Maraglino knew of Perez's unlawful intent and intended to assist him in the offense; and (3) Maraglino engaged in conduct that in fact assisted Perez in achieving the kidnapping. See Perez, 35 Cal.4th 1219 at 1225.

Much of the same evidence which supported Maraglino's conspiracy conviction, discussed above at length, also supports her conviction for kidnapping as an aider and abettor. A reasonable juror could have inferred from the evidence that Maraglino and Perez came up with the idea to dupe Killgore into accepting an invitation to accompany him on the dinner cruise after hearing about the cruise from Hernandez when she visited them on the afternoon of April 13, 2012. When Killgore declined Perez's invitation, he immediately texted Maraglino that he was "not successful." It was Maraglino who ultimately intervened, calling Killgore and convincing her to go on the cruise with Perez. The evidence further suggested she knew Perez had no intention of taking Killgore on the cruise. Maraglino lied to Killgore about having tickets. She lied to Hernandez about talking to Killgore that evening. And she lied to detectives about giving Killgore her permission to go out with Perez that night. When all the evidence is viewed in the light most favorable to the prosecution, a reasonable juror could conclude that Maraglino was in on the plan to kidnap Killgore and indeed was crucial in assisting Perez in executing it by manipulating Killgore into leaving with Perez that night. Thus, a rational juror could find that Maraglino aided and abetted Killgore's kidnapping.

In sum, the evidence, and the reasonable inferences a rational juror could draw from it, supports Maraglino's kidnapping conviction under both the co-conspirator theory and the aiding and abetting theory. The state court's denial of Petitioner's claim was neither contrary to, nor an unreasonable application of clearly established law set forth in Jackson. See Williams, 529 U.S. at 412-13; 28 U.S.C. §2254(d)(1). Nor was it based on an unreasonable determination of the facts in light of the state court record. See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); 28 U.S.C. § 2254(d)(2).

4. First Degree Felony Murder

Maraglino also challenges the sufficiency of evidence to support her murder conviction. (See Pet. at 6, 13, ECF No. 3.) She raised this claim in her petition for review to the California Supreme Court, which was denied without comment or citation. (See Lodgment Nos. 16 & 18, ECF Nos. 16-51, 16-53.) Thus, this Court looks through to the opinion of the California Court of Appeal. See Ylst, 501 U.S. at 805-06. The appellate court denied claim, stating, in relevant part:

(Lodgment No. 14 at 69.)

California's felony-murder rule makes a killing while committing certain felonies murder without the necessity of further examining the defendant's mental state. First degree felony murder is a killing during the course of committing a specified felony. Cal. Penal Code § 189. Murder committed in the perpetration of or attempt to perpetrate kidnapping is felony murder in the first degree. Id.; see also People v. Booker, 51 Cal.4th 141, 175 (2011).

The mental state required for first degree felony murder is "simply the specific intent to commit the underlying felony." People v. Clark, 63 Cal.4th 522, 615 (2016) (quoting People v. Cavitt, 33 Cal.4th 187, 197 (2004)). The actus reus requirement for an aider and abettor to first degree felony murder is aiding and abetting the underlying felony or attempted felony that results in the murder. Cal. Penal Code §§ 31, 189. A defendant must have "harbored the felonious intent either prior to or during the commission of the acts which resulted in the victim's death." People v. Brooks, 2 Cal. 5th 674, 733 (2017) (quoting People v. Ainsworth, 45 Cal.3d 984, 1016 (1988). First degree felony murder "does not require proof of a strict causal or temporal relationship between the felony and the killing." Brooks, 2 Cal. 5th at 733.

In Maraglino's case, the jury was instructed that to establish first degree felony murder, the prosecution was required to prove Maraglino (1) "aided and abetted, or was a member of a conspiracy to commit kidnapping"; (2) "intended to aid or abet the perpetrator in committing or intended that one or more of the members of conspiracy commit kidnapping. . ."; (3) the perpetrator, whom Maraglino was aiding and abetting or with whom Maraglino conspired, personally committed or attempted to commit kidnapping; and (4) while kidnapping or attempting to kidnap Killgore, the perpetrator caused her death.15 (See Lodgment No. 3, vol. 4 at 1161; see also CALCRM No. 540B.)

Here, for the reasons discussed above in sections V(A)(2) and V(A)(3) of this Order, when the evidence is viewed in the light most favorable to the verdict, a reasonable juror could conclude that Maraglino conspired with Perez to kidnap Killgore and that she also aided and abetted the kidnapping, which was perpetrated by Perez. A reasonable juror viewing the evidence in the light most favorable to the verdict could conclude that during the of execution of that plan, Killgore was killed. The question of whether Killgore was killed intentionally or accidentally is irrelevant, as is the question of whether it was Perez, Lopez or Maraglino who physically caused her death. See Brooks, 2 Cal. 5th at 733. This is sufficient to support her conviction for felony first degree murder. The state appellate court's denial of the claim was neither contrary to, nor an unreasonable application of, clearly established law. See Williams, 529 U.S. at 407-08. Likewise, the it was not based on an unreasonable determination of the facts. See Miller-El, 537 U.S. at 340.

For the foregoing reasons, Maraglino has failed to establish the state court's denial of her claims of insufficient evidence to support her convictions for conspiracy to kidnap, kidnap and felony murder was contrary to, or an unreasonable application of clearly established law. See 28 U.S.C. § 2254(d)(1); Williams, 529 U.S. at 407-08. Further, the state court's decision was not an unreasonable determination of the facts in light of the state court record. See 28 U.S.C. § 2254(d)(2); Miller-El, 537 U.S. at 340. Therefore, claim one is DENIED in its entirety.

B. Ground Two: Kidnapping Special Circumstance

In ground two Maraglino argues that even if there was sufficient evidence to convict her of the above counts, there was insufficient evidence to support the jury's true finding on the special circumstance allegation that Killgore was murdered while Maraglino was committing or aiding and abetting her kidnapping. (Pet. at 7, 15-16.) Specifically, she contends her due process rights were violated because there was insufficient evidence to show she was a "major participant" in the murder, as required under California Penal Code sections 190.2(d) and 190.2(a)(17)(B). As a result, she further claims her sentence to life in prison without the possibility of parole violates her Eighth Amendment right to be free from cruel and unusual punishment. (See id.)

1. State Court Decision

Petitioner raised this claim in her petition for review to the California Supreme Couth, which was denied without comment or citation. (See Lodgment Nos. 16 & 18.) As such, this Court looks through to the reasoned opinion of the California Court of Appeal. See Ylst, 501 U.S. at 805-06. It denied the claim, stating in relevant part:

(Banks, supra, 61 Cal.4th at p. 803.)

(Lodgment No. 14 at 70-78.)

2. Discussion

The state court's denial of Maraglino's claim was neither contrary to, nor an unreasonable application of, clearly established law. The standard on habeas review for assessing challenges to the sufficiency of evidence supporting a sentencing enhancement is the same as that for weighing the sufficiency of evidence underlying a criminal conviction. See Garcia v. Carey, 395 F.3d 1099, 1102 (9th Cir. 2005); see also Jackson, 443 U.S. at 321.

As the appellate court noted, under California law, a defendant can be sentenced to life without the possibility of parole for first degree felony murder if a jury finds a special circumstance to be true. Specifically, California Penal Code section 190.2(d) states:

Cal. Penal Code § 190.2(d). Kidnapping is one of the enumerated felonies. Cal. Penal Code § 190.2(a)(17)(B).

The jury was instructed pursuant to CALCRIM No. 700 that if it found Maraglino guilty of first degree felony murder, it must then decide if evidence proved the special circumstance allegation beyond a reasonable doubt. (Lodgment No. 3, vol. 4 at 1168.) Specifically, the court instructed jurors under CALCRIM No. 730 that in order to find the special circumstance to be true as to Maraglino, the prosecutor must prove the following:

(Lodgment No. 3, vol. 4 at 1173; see also CALCRIM No. 730.)

Furthermore, the court instructed the jury on the specific intent required to find the special circumstance to be true as to an accomplice, as follows:

(Lodgment No. 1, vol. 5 at 1169-70; see also CALCRIM No. 703.)

While the jury was specifically instructed on the definition of "reckless indifference," it was not instructed as to a precise definition for what constitutes a "major participant." Such a term within a statute, however, need not be further defined when it expresses a concept within a jury's ordinary experience. United States v. Moore, 921 F.2d 207, 210 (9th Cir. 1990); see also Abernathy v. Terhune, 60 Fed. Appx. 143, 145, 2003 WL 1194240 (9th Cir. 2003) ("[W]e hold here that the term "major participant" is a term within the ordinary experience of the jury.")

As the appellate court discussed, the California Supreme Court considered the scope of "major participant" requirement in People v. Banks, 61 Cal.4th 788, 797-98 (2015). In Banks, the court reviewed the circumstances under which an accomplice who "lacks the intent to kill may qualify as a major participant so as to be statutorily eligible for the death penalty" or a sentence of life without the possibility of parole. See id. at 794, 804. The defendant in Banks, Lovie Matthews, was a getaway driver in an armed robbery committed by Banks and other co-defendants. Id. During the robbery and while escaping, Banks shot and killed one of the victims. Id. at 794-95. Matthews was found guilty of first degree felony murder as an accomplice. Id. at 797. The court in Banks reversed the jury's special circumstance true finding, concluding the evidence insufficient to support the conclusion that Matthews was a "major participant." Id. at 804-05. The court reasoned there was no evidence Matthews had any role in planning the robbery or procuring the weapons and he was not present during the murder. The court concluded that, "Matthews was, in short, no more than a getaway driver" and as such, he was not a "major participant." Id. at 805.

The Banks court identified a non-exhaustive list of relevant factors to be considered in determining whether an aider and abettor is a "major participant": the person's role in planning the enterprise that led to death; their role in supplying lethal weapons; their awareness of dangers posed by the nature of the crime, weapons used, or experience or conduct of other participants; their presence at the scene and position to facilitate or prevent the murder; whether their action or inaction played a role in the death; and what they did after lethal force was used. Banks, 61 Cal. 4th at 803.

Here, a reasonable juror could have concluded Maraglino was a major participant. When viewed in the light most favorable to the jury's verdict, evidence showed that Maraglino was integral in planning and assisting in carrying out Killgore's abduction. As discussed above, evidence suggested Perez and Maraglino came up with the plan to lure Killgore with an invitation to a Hornblower cruise after hearing Hernandez discuss it on the afternoon of April 13, 2012. (Lodgment No. 1, vol. 13 at 2273-74, 2277, 2281-83.) Perez went to Killgore's apartment only a few hours later to ask her to join him, despite not having tickets as he claimed. (Id., vol. 12 at 2057.) A reasonable juror could infer that Maraglino was critically involved in this, as well. Perez had never been to Killgore's apartment before and told Killgore he had "asked around" to find out where she lived, suggesting Maraglino could have helped provide the information to him. (Id., vol. 12 at 2055, 2058.) When Killgore declined Perez's invitation, Perez texted Maraglino that he was "not successful." (Id., vol. 15 at 2642-43; vol. 18 at 3267.) Killgore only changed her mind after Maraglino called Killgore and encouraged her to go with Perez. (Id., vol. 12 at 2068, 2073; vol. 17 at 3156-57; vol. 18 at 3275-76, 3347.) Thus, Maraglino's involvement was essential to executing the plan.

Furthermore, evidence showed that minutes after Killgore sent the "help" text to Tal, Perez then texted Maraglino and returned to Maraglino's house with Killgore. (Id. vol. 13 at 2175-77, 2183; vol. 18 at 3283.) Perez texted Maraglino again, telling her to "come home." (Id., vol. 18 at 3285.) A reasonable juror could have inferred that Killgore was killed after Maraglino (and Lopez) returned to the house.

In addition, there was extensive evidence, as discussed above, that Maraglino was directly involved in covering up the crime. She lied repeatedly to Killgore's friends and law enforcement. (See id., vol. 13 at 2297-98, 2301; vol. 18 at 3286; vol. 19 at 3512-16; see also Lodgment No. 3, vol. 5 at 1253, 1257, 1260.) She also helped Perez create trail of false evidence. As Perez drove to downtown San Diego with Killgore's cell phone, he and Maraglino exchanged texts to make it appear she was spending a quiet night at home, watching movies. (Lodgment No. 1, vol. 18 at 3287-88.) She later attempted to destroy evidence of her cell phone communications with Killgore by wiping data from her phone and hiding it in her brother's closet in another state. (Id., vol. 17 at 3179-84; vol. 19 at 3529-30, 3536; vol. 21 at 3710.) Given all the evidence, when viewed in the most favorable light, the state court reasonably concluded there was sufficient evidence to establish Maraglino was a "major participant."

There was also sufficient evidence Maraglino acted with reckless indifference to human life. Evidence suggested Killgore was kidnapped as part of a BDSM fantasy. Maraglino had repeatedly expressed interest in violent abductions, including "kidnapping a girl off the street, taking her somewhere, playing with her, beating her, and raping her." (Id. at 1346-47; vol. 9 at 1415; vol. 11 at 1858, 1884.) Given their relationship, Maraglino also knew Perez had an extensive history of choking and beating women (among other things) during BDSM activities. (Id. vol. 8 at 1342-43; vol. 9 at 1418, 1429; vol. 11 at 1925-28, 1931; vol. 12 at 1960-61, 1996.) In addition, Maraglino knew Killgore was not interested in BDSM and would not consent to participating. (See id., vol. 13 at 2246.) In short, Maraglino knew, or should have known, that kidnapping Killgore with Perez as part of a nonconsensual BDSM abduction fantasy involved a grave risk of death. See Clark, 63 Cal. 4th at 621 (noting a defendant's knowledge of a cohort's propensity for violence creating a grave risk of death is relevant in determining reckless indifference).

Thus, the state appellate court reasonably concluded sufficient evidence supported the jury's special circumstance true finding. As such, the denial of Maraglino's due process claim was neither contrary to, nor an unreasonable application of, clearly established law Jackson. See Williams, 529 U.S. at 412-13; 28 U.S.C. §2254(d)(1). Nor was it based on an unreasonable determination of the facts in light of the state court record. See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); 28 U.S.C. § 2254(d)(2).

Finally, as for the Eighth Amendment aspect of Petitioner's claim, the Supreme Court has held that the Eighth Amendment prohibits "sentences that are disproportionate to the crime committed." Solem v. Helm, 463 U.S. 277, 284 (1983). The Supreme Court has found that imposition of the death penalty on a defendant convicted of felony murder as an accomplice does not violate the Eighth Amendment where the defendant was a major participant in the underlying felony and acted with reckless indifference to human life. Tison v. Arizona, 481 U.S. 137, 152, 157-58 (1987). Furthermore, the Court has never held that a sentence of life without the possibility of parole for felony murder conviction violates the Eighth Amendment's proscription against disproportionate sentences. See Harmelin v. Michigan, 501 U.S. 957, 1004 (1991) ((Kennedy, J., concurring) (stating that "no sentence of imprisonment would be disproportionate" for the crime of felony murder, even though, like aiding and abetting murder, felony murder does not require the specific intent to kill) (quoting Solem, 463 U.S. at 290 n. 15)). Thus, Maraglino's sentence to life without the possibility of parole for felony murder is not disproportionate. See Harmelin, 501 U.S. at 1004. The appellate court's denial of the claim was neither contrary to, nor an unreasonable application of, clearly established law. See Williams, 529 U.S. at 407-08; see also 28 U.S.C. § 2254(d). Therefore, claim two is DENIED in its entirety.

VI. REQUEST FOR APPOINTMENT OF COUNSEL

In her Petition, Maraglino asks this Court to appoint counsel. (See Pet. at 17-18.) The Sixth Amendment right to counsel does not extend to federal habeas corpus actions by state prisoners. McCleskey v. Zant, 499 U.S. 467, 495 (1991); Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). However, financially eligible habeas petitioners seeking relief pursuant to 28 U.S.C. § 2254 may obtain representation whenever the court "determines that the interests of justice so require.'" 18 U.S.C. § 3006A(a)(2)(B) (West Supp. 2007); Terrovona v. Kincheloe, 912 F.2d 1176, 1181 (9th Cir. 1990); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984).

The appointment of counsel is discretionary when no evidentiary hearing is necessary. Terrovona, 912 F.2d at 1177; Knaubert, 791 F.2d at 728. In the Ninth Circuit, "[i]ndigent state prisoners applying for habeas relief are not entitled to appointed counsel unless the circumstances of a particular case indicate that appointed counsel is necessary to prevent due process violations." Chaney, 801 F.2d at 1196; Knaubert, 791 F.2d at 728-29. Factors to be considered are the likelihood of success on the merits and whether the issues involved are too complex for the petitioner. Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). In addition, the appointment of counsel may be necessary if the petitioner has such limited education that he or she is incapable of presenting his or her claims. La Mere v. Risley, 877 F.2d 622, 626 (9th Cir. 1987).

The issues in the present case are not too complex for Maraglino. She has sufficiently represented herself to date. The claims she raised in the Petition were also raised and fully briefed by her appellate counsel on direct appeal. Further, from the face of the petition, filed pro se, it appears that Petitioner has a sufficient grasp of the issues. The Petition was pleaded sufficiently to warrant this Court's order directing Respondent to file an answer or other responsive pleading to the Petition. As the court in Knaubert noted: "unless an evidentiary hearing is held, an attorney's skill in developing and presenting new evidence is largely superfluous; the district court is entitled to rely on the state court record alone." Knaubert, 791 F.2d at 729 (citing Sumner v. Mata, 449 U.S. 539, 545-57 (1981), and 28 U.S.C. §2254(d)). Moreover, as noted above, "[t]he procedures employed by the federal courts are highly protective of a pro se petitioner's rights. The district court is required to construe a pro se petition more liberally than it would construe a petition drafted by counsel." Knaubert, 791 F.2d at 729 (citing Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding pro se complaint to less stringent standard) (per curiam)); Bashor, 730 F.2d at 1234. For the above reasons, the "interests of justice" in this matter do not compel the appointment of counsel. See LaMere, 827 F.2d at 626. Accordingly, Petitioner's request for appointment of counsel is DENIED.

VII. CERTIFICATE OF APPEALABILITY

Under AEDPA, a state prisoner seeking to appeal a district court's denial of a habeas petition must obtain a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). The district court may issue a certificate of appealability if the petitioner has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To satisfy this standard, a petitioner must show that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000).

The federal rules governing habeas cases brought by state prisoners require a district court that issues an order denying a habeas petition to either grant or deny a certificate of appealability. See Rules Governing § 2254 Cases, Rule 11(a). The Ninth Circuit has noted that the standard for granting a certificate of appealability is "relatively low." Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002). A petitioner "need not show that he should prevail on the merits," Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000), but may be entitled to a certificate when the "questions are adequate to deserve encouragement to proceed further." Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983) (superseded on other grounds by 28 U.S.C. § 2253(c)(2)). Here, Maraglino has failed to make "a substantial showing of the denial of a constitutional right," and reasonable jurists would not find debatable this Court's assessment of her claims. See Slack, 529 U.S. at 484. Accordingly, a certificate of appealability DENIED.

VII. CONCLUSION

Based on the foregoing, the Court DENIES the petition for writ of habeas corpus; DENIES the request for appointment of counsel and DENIES a certificate of appealability.

IT IS SO ORDERED.